Henri Nababan v. Merrick Garland

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT HENRI NABABAN; HARLENA ROSE No. 18-72548 SILALAHI, Petitioners, Agency Nos. A078-020-176 v. A096-349-826 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 13, 2021 Pasadena, California Filed November 23, 2021 Before: Richard A. Paez and Lawrence VanDyke, Circuit Judges, and Sharon L. Gleason, * District Judge. Opinion by Judge Gleason; Dissent by Judge VanDyke * The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. 2 NABABAN V. GARLAND SUMMARY ** Immigration Granting Henri Nababan and Harlena Rose Silalahi’s petition for review of an order of the Board of Immigration Appeals denying their second motion to reopen their applications for asylum, withholding of removal, and relief under the Convention Against Torture, vacating the order of removal, and remanding, the panel held that the Board erred by failing to assess Petitioners’ individualized risk of persecution in Indonesia due to their identity as evangelical Christians. The panel explained that the Board correctly recognized that Christians in Indonesia are a disfavored group, but it failed to account for Petitioners’ status as evangelical Christians or the evidence they presented indicating that evangelical Christians have experienced a particular increase in violence and persecution, beyond that experienced by Indonesian Christians in general. The panel remanded for the Board to assess whether country conditions in Indonesia have materially changed for evangelical Christians in particular, as distinct from Christians in general. Moreover, the panel instructed that if the Board finds materially changed country conditions, it should consider the impact of Petitioners’ recent leadership roles in their church, which the Board previously characterized as changes in personal circumstances, and determine whether Petitioners have established prima facie ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. NABABAN V. GARLAND 3 eligibility for asylum, withholding of removal, and CAT relief. Dissenting, Judge VanDyke wrote that the majority remands to the Board due to the Board’s purported failure to assess Petitioners’ individualized risk as “evangelical Christians” within the broader group of Indonesian Christians generally, but in doing so, clings to a myopic focus on the phrase “evangelical Christians,” which the record reveals is at most mere semantics and a misrepresentation of the Board’s decision. Judge VanDyke wrote that simply because the Board did not ritualistically chant the precise phrase “evangelical Christians” in its decision cannot be a reason to ignore that the Board appropriately considered the particular risk that Petitioners might face as Christians who evangelize. Moreover, Judge VanDyke wrote that the majority relies on an expert affidavit that fails to provide any evidence or analysis showing that “evangelical Christians” are treated any differently in Indonesia than Christians generally—or, for that matter, all religious minorities. Judge VanDyke explained that once one strips away the majority’s magic-word requirement, what’s left is the question of …

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